Interference No. 102,755
agreement concerning the withholding of motions of any party. 49
Nedelk's reply, relying on affidavits by Bruce DeYoung and50
Ray Weber, insists (at 2) that
Stimson et al. was well aware that such a
Motion was going to be filed if settlement
could not be reached between all parties
involved. In fact, as noted herein, to the
extent there was any "delay" in the filing
of Nedelk's Belated Motion, such "delay"
occurred only after counsel for Stimson et
al. encouraged it, and to have filed this
Motion sooner[] would have created an
atmosphere not conducive to good faith
settlement negotiations.
Finding the parties' affidavits to be in direct conflict
regarding the existence of an agreement, the APJ required
additional affidavits on this question. Stimson responded51
with affidavits by Anthony Lorusso, William Knoeller, Thomas
Saunders, and William Wesley as well as a supplemental
We note that although none of the affidavits filed by the49
parties regarding Nedelk's "agreement" excuse appear in Nedelk's
record and Stimson did not file a record, neither party makes an
objection to the opponent's affidavits based on this omission.
Consequently, that omission will not stand in the way of our
consideration of those affidavits.
Paper No. 53.50
Paper No. 57, at 5-6. Nedelk was also given twenty-one51
days to file a paper explaining why, if it so believes, its
involved claims are patentable over the prior art cited in the
belated motions (id. at 6-7). Nedelk responded by conceding that
its claims are unpatentable over the cited prior art if Stimson's
claims are determined to be unpatentable over that prior art
(paper No. 58).
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